Petitioner,
Antwon Brown (“Brown”), currently incarcerated at
the Willard-Cybulski Correctional Institution in Enfield,
Connecticut, filed a petition for habeas corpus pursuant to
section 2254 of title 28 of the United States Code,
challenging his conviction for conspiracy to commit robbery.
See Petition (Doc. No. 1) at 2. The respondent, the
State of Connecticut, contends that Brown is not entitled to
federal habeas relief on any ground for relief asserted in
the Petition. See Resp't's Mem. (Doc. No.
11) at 2. For the reasons that follow, the court concludes
that the Petition should be denied.

I.
PROCEDURAL BACKGROUND

Brown
was the defendant in two separate criminal cases in the
Connecticut Superior Court for the Judicial District of
Waterbury. Each case involved the robbery of one business.
The court granted a motion to consolidate the two cases, and
the state filed a substitute information charging Brown with
two counts of conspiracy to commit robbery in the first
degree. See State v. Brown, 31 A.3d 434, 436 (Conn.
App. 2011).

Before
the trial commenced, Brown moved to suppress a statement he
provided to the police. See Amended Motion to
Suppress (in Doc. No. 11-2) at 31-38. The trial court denied
the motion immediately following a hearing. See
Second Court Action Log (in Doc. No. 11-2) at 4; Trial Court
Ruling (in Doc. No. 11-2) at 41.

The
jury found Brown guilty on both counts. Brown, 31
A.3d at 435. On February 9, 2010, the court, sua
sponte, ordered both parties to address at sentencing
whether the two conspiracy convictions should be merged.
Id. at 436. On March 26, 2010, the court considered
the parties' arguments and declined to merge the two
convictions. The court concluded that Brown's confession
contained no evidence that the men agreed to rob both
businesses at the same time. Id. The court sentenced
Brown to two concurrent terms of imprisonment of ten years
followed by ten years of special parole. Id.

Brown
challenged his conviction on direct appeal on the ground that
considering the two counts of conspiracy to commit robbery as
separate offenses violated his right to be free from double
jeopardy. The Connecticut Appellate Court affirmed the
conviction, and the Connecticut Supreme Court denied
certification without comment. Id. at 435, cert
denied, 34 A.3d 396 (Conn. 2012).

On
February 8, 2011, while his direct appeal was pending, Brown
filed a state habeas action. The Amended Petition in that
case, filed by appointed counsel, alleged that trial counsel
was ineffective in several ways. See State Case
Amended Petition (in Doc. No. 11-10) at 36-37. Following a
hearing, the state court denied the State Case Amended
Petition. Brown v. Warden, No. CV114003967, 2013 WL
6171366 (Conn. Super. Ct. Oct. 31, 2013) at *5. The habeas
court also denied certification to appeal. See
Appeal File (in Doc. No. 11-10) at 59.

The
Connecticut Appellate Court determined that the jury
reasonably could have found the following facts.

On
November 11, 2008, Brown's friend, Lonnie Cross, called
Brown and told him that he was coming to pick him up. When
Cross picked Brown up at Brown's home, Adam Mines,
another friend, was in the front seat of Cross' car.
Cross drove to a convenience store and told Mines and Brown
that he was going to rob the store. Mines and Brown waited in
the car when Cross entered the store. Brown, 31 A.3d
at 435.

Cross
returned to the car a few minutes later and reported that
“‘everything was good.'” Cross drove to
a liquor store. He parked the car on a nearby street and told
Mines and Brown that he was going to rob the liquor store.
Mines agreed to go with Cross. They told Brown to wait in the
driver's seat and keep the car running. He did so. Cross
and Mines left the liquor store a few minutes later. Brown
drove away as soon as they were in the car. Id.

All
three men were apprehended later that night. Brown was taken
to the police station for questioning. Brown provided a
voluntary statement detailing his involvement in the two
robberies. Immediately after he gave the statement, Brown was
arrested. Id. at 435-36.

III.
STANDARD OF REVIEW

The
federal court will entertain a petition for writ of habeas
corpus challenging a state court conviction only if the
petitioner claims that his custody violates the Constitution
or federal laws. 28 U.S.C. § 2254(a).

The
federal court cannot grant a petition for a writ of habeas
corpus filed by a person in state custody with regard to any
claim that was rejected on the merits by the state court
unless the adjudication of the claim in state court either:

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d). The federal law defined by the
Supreme Court “may be either a generalized standard
enunciated in the Court's case law or a bright-line rule
designed to effectuate such a standard in a particular
context.” Kennaugh v. Miller, 289 F.3d 36, 42
(2d Cir.), cert. denied, 537 U.S. 909 (2002).
Clearly established federal law is found in holdings, not
dicta, of the U.S. Supreme Court at the time of the
state court decision. White v. Woodall, 134 S.Ct.
1697, 1702 (2014). Second Circuit law which does not have a
counterpart in Supreme Court jurisprudence cannot provide a
basis for federal habeas relief. See Renico v. Lett,559 U.S. 766, 778 (2010) (holding that court of appeals erred
in relying on its own decision in a federal habeas action);
see also Kanev. Garcia Espitia, 546 U.S.
9, 10 (2005) (absent a Supreme Court case establishing a
particular right, federal court inference of right does not
warrant federal habeas relief).

A
decision is “contrary to” clearly established
federal law where the state court applies a rule different
from that set forth by the Supreme Court or if it decides a
case differently than the Supreme Court on essentially the
same facts. Bell v. Cone, 535 U.S. 685, 694 (2002).
A state court unreasonably applies Supreme Court law when the
court has correctly identified the governing law, but
unreasonably applies that law to the facts of the case. The
state court decision must be more than incorrect; it must be
“so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility of fairminded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103 (2011); see also Burt
v. Titlow, 134 S.Ct. 10, 15 (2013) (federal habeas
relief warranted only where the state criminal justice system
has experienced an “extreme malfunction”);
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(objective unreasonableness is “a substantially higher
threshold” than incorrectness).

When
reviewing a habeas petition, the federal court presumes that
the factual determinations of the state court are correct.
The petitioner has the burden of rebutting that presumption
by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Cullen v. Pinholster, 131 S.Ct. 1388,
1398 (2011) (standard for evaluating state court rulings
where constitutional claims have been considered on the
merits and which affords state court rulings the benefit of
the doubt is highly deferential and difficult for petitioner
to meet). The presumption of correctness, which applies to
“historical facts, that is, recitals of external events
and the credibility of the witnesses narrating them[,
]” will be overturned only if the material facts were
not adequately developed by the state court or if the factual
determination is not adequately supported by the record.
Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999)
(internal quotation marks and citation omitted).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
addition, the federal court&#39;s review under section
2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.
Pinholster, 131 S.Ct. at 1398. Because collateral
review of a conviction applies a different standard than the
direct appeal, an error that may have supported reversal on
direct appeal will not ...

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